New regulations about illegal downloading go into effect
TORONTO – Looking to get your hands on a digital copy of The Interview, or Fury, or Birdman before they hit store shelves? Or how about the latest episode of Game of Thrones just minutes after it ends on HBO?
Well, if you’re downloading files illegally in Canada on Jan. 2, 2015 you might be getting a notice from your Internet service provider (ISP) asking you to stop.
But that’s all – the notices are not the first stages of a lawsuit and you won’t go to jail. So what’s new and how effective will these notices be in preventing piracy?
The Jan. 2 rules just codify what ISPs have generally been doing the last ten years: they require providers like Rogers and Bell to send a letter, technically called a “Notice and Notice,” to the person connected to the IP address asking them to stop if they’re thought to be partaking in copyright infringement.
Your ISP isn’t going out of its way to track what you download though. Instead, it’s only required to forward notices it’s received from copyright owners.
And the notices can only ask you to stop—though there is some worry that copyright owners might try to sneak in demands for payment.
“If you pay us $3,000 by such and such a date, we will not sue you,” is one possible tactic, copyright lawyer Howard Knopf said during an interview. “The law was not intended to work that way and what people will not realize is that there’s no judicial process involved in that. And in the absence of a successful lawsuit, they’re not under any obligation to pay anything.”
Some ISPs have already sent the notices. According to a presentation by University of Ottawa professor Michael Geist, only five per cent of Rogers subscribers received a notice in 2011. Of those people, 68 per cent received a single notice; 89 per cent received two notices, and 1 in 800,000 received numerous notices.
And they seemed to work: Rogers told a House of Commons committee in 2011 that 67 per cent of people who received a notice didn’t reoffend.
“People tend to take down what is offending, if it’s illegal, and tend not to repeat their behaviour. So it’s a very effective way of educating people to not infringe copyright,” Knopf, counsel at Ottawa law firm Macera & Jarzyna said.
But that doesn’t mean you can get away with downloading your favourite movie illegally. Copyright holders are still able to take people to court; but the case would be civil, not criminal, according to John Cotter, a lawyer with Osler, Hoskin & Harcourt LLP.
“In terms of rights and remedies, the copyright owner has what they’ve always had,” Cotter said. “So that if the recipient of the notice doesn’t take down the content in question, they have the same exposure they’ve always had to liability.”
Cotter said damages for copyright infringement can range between $500 and $20,000 for commercial activity.
And it’s far different than the United States where people have been ordered to pay millions. In 2009, Jammie Thomas-Rasset, a 32-year-old woman from Minnesota, was ordered to pay $1.9 million for downloading 24 songs.
“The cap is going to be $5,000 (for non-commercial activity), so nobody is going to lose their house over this,” Knopf said.
“But not only that, it’s a cap of $5,000 for that particular behaviour and all previous infringing behaviour against the works of all other copyright owners.”
Identifying the “pirate” can be difficult: The copyright holder has to bring evidence of copyright infringement before a court and ask the names associated with it be disclosed.
The ISP has to keep records of the notice for six months or up to a year if the issue goes to court within the first six months. But they don’t have to give up the name of the person issued a notice unless there’s been a court order. And that can be difficult for the copyright holder to get.
There have been two notable cases in Canada where a copyright holder has tried to obtain names from an ISP—one was unsuccessful, the other is still before a judge.
In 2004, BMG Canada asked a court to order the disclosure of account information associated with 29 IP addresses believed to be involved with downloading 1,000 copyrighted music files from peer-to-peer sharing software. They were denied.
More recently, Voltage Pictures, the production company responsible for The Hurt Locker, took Teksavvy to court to try and obtain the names of people accused of downloading some of their content including Dallas Buyers Club. In this case, the court said they would order the disclosure of names provided Voltage Pictures pay the “reasonable costs” of finding the names associated with the IP addresses – a cost which the ISP has pegged at $346,480.68. Voltage Pictures suggested it should pay no more than $884.
(As of Jan. 2, there was no ruling on whether Voltage Pictures will have to pay).
IP addresses aren’t exact either – they’re like a license plate. They can provide information about who owns the car, but not who is driving.
The bill does have some detractors: The Canadian Independent Music Association, which represents independent artists, panned the bill in a written statement for not having a “take-down provision” which would force the illegal content off the Internet.
“The ‘notice‐and‐notice’ provision puts an unreasonable burden on copyright owners and creators to self‐police infringements ‐‐ while essentially allowing ISPs once notified of an infringement, to have no further involvement and thereby creating the untenable situation whereby infringements will continue.”